Nash v. Wells Fargo Guard Services, Inc.

Methodist Hospital (Methodist) hired Wells Fargo Guard Services, Inc. (WFGS) (defendant) to provide security. Lucille Nash (plaintiff), a Methodist employee, was assaulted in Methodist’s parking garage and suffered injuries. Nash sued WFGS for damages. WFGS did not raise an affirmative defense asserting that Methodist’s negligence contributed to Nash’s injuries in either its responsive pleading or at the pretrial conference. After testimony closed at trial, WFGS argued, for the first time, that responsibility for any noneconomic damages awarded to Nash should be apportioned between WFGS and Methodist. Noneconomic damages include damages for pain-and-suffering and diminution in quality-of-life. The trial court denied WFGS’s motion and ordered WFGS to pay Nash damages, including noneconomic damages. The trial court held that only named defendants could be included in the verdict. WFGS appealed. Before the appellate court ruled, the Florida Supreme Court issued its ruling in Fabre v. Marin, which held that noneconomic damages must be apportioned to include all responsible entities, even those not named as defendants. Based on Fabre, the appellate court reversed and remanded for a new trial on all issues; the appellate court’s remand was not limited to apportionment. Nash appealed, arguing that (1) the new trial must be restricted to the apportionment issue; and (2) because WFGS failed to raise the apportionment issue until after trial testimony was concluded, WFGS waived its right to do so.